The Legal Profession Act, 1990 was amended in 2014 to include firms as members of the Law Society. Under the Act, one of the duties of the Law Society is to protect the public by assuring the integrity, knowledge, skill, proficiency and competence of members. As the Law Society works to design a framework for regulating law firms in addition to lawyers, it has been exploring a proactive approach. This would allow both law firms and the Law Society to be more responsive to a diverse and profoundly changing environment, to enhance the quality of legal services, to encourage ethical legal practice and to foster innovation in legal services.

Over the past couple of years, the Law Society has communicated with the membership in a variety of forums regarding the concept of proactive firm/entity regulation. However, in developing resources and a method of assessment, a more specific consultation was desired.

The Assessment Tool

To determine the most meaningful way to engage with law firms though proactive regulation, the Law Society of Saskatchewan has been participating in a pilot project to test a new resource that helps firms assess the robustness of their practice management systems and firm culture. Created by the Prairie Law Societies, the Law Firm Practice Management Assessment Tool (the “Assessment Tool”) helps a firm recognize its strengths and provides “things to consider” in areas where opportunities for improvement have been identified. These include examples of how a law firm might put practices, policies or procedures into place, along with links to further resources that law firms can use in addressing practice management concerns.

The Assessment Tool places the focus on the firm because we know that the systems, norms and culture of a firm greatly influence the conduct and overall practice of its lawyers. We also recognize that lawyers are busy people and collecting resources and assessing infrastructure can be time-consuming. By its design, the Assessment Tool is intended not only as an evaluation mechanism, but also as a convenient source of best practice resources for firms. The content of the Assessment Tool is designed to help firms think about ways to best serve their clients, their lawyers and their employees. This fosters both public protection in ethical, efficient practice as well as good business.

The Pilot Project

As the regulation of law firms is a relatively new idea in Canada, it was important to the Law Society to test the Assessment Tool through a pilot project and receive feedback from members before determining whether this new approach should be implemented and, if so, how. We collaborated with the Law Societies of Alberta and Manitoba to design the Prairie Law Societies’ Law Firm Practice Management Pilot Project (the “Pilot Project”). The goal was to test the functionality of the Assessment Tool and determine how it could be used in helping firms work with the Law Society to ensure sound practice management systems are in place.

Pilot Project participants were identified by randomly selecting firms of various sizes throughout the province, providing a representative sample of Saskatchewan firms. Those firms were then invited to voluntarily participate in the Pilot Project. Ultimately, 22 Saskatchewan firms participated. A similar process was followed in Alberta and Manitoba.

Participating firms were asked to designate a representative to be the point person for the Pilot Project. The designated representative’s task was to ensure the firm undertook the self-assessment, using the Assessment Tool, which references a number of principles relating to practice management and firm culture. The designated representative then reported to the Law Society about things that the firm has been doing well and also identified areas for improvement. The designated representatives were then asked to complete an evaluation of the Assessment Tool, and conduct an exit interview about their experience. This feedback has been extremely informative and will be crucial to the determinations the Benchers will make about the ultimate assessment process.

Where do we go from here?

The Pilot Project is in its final stages and the Law Society will now take some time to review the feedback received from the participants before determining the next steps for this initiative.

The ultimate goal is to foster a more collaborative relationship between the Law Society and its members, including firms, and to help lawyers and firms manage risk so that the likelihood of conduct leading to a complaint or negligence is minimized. As the Law Society moves toward implementing a proactive approach to regulating law firms, it will strive to create an approach that is practical, productive and meaningful for both the Law Society and our members.

Pilot Project Participants

The feedback we have received from the participating firms has been invaluable. Our thanks is extended to each of them for the time they have dedicated to the project and the input they have provided:

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Beginning February 5, 2018, search results in the Saskatchewan Personal Property Registry (SPPR) and Judgment Registry (JR) will display active enforcement instructions registered against judgments. Including these notices into the SPPR and JR will provide quick and convenient access to this information.

On February 5, all newly received enforcement instructions delivered to the local Sheriff will be registered by the Enforcement of Money Judgments Unit against judgments in the registry. At that time, all current enforcement instructions filed with Sheriff Offices will have been imported into the SPPR and JR.

An enforcement instruction is a part of the legal process in place that enables the Sheriff to pursue funds owed under a judgment. Enforcement Instructions to enforce a judgment can be provided to the local Sheriff after a judgment has been registered in the Judgment Registry. More information on enforcement of judgments may be found at Sask Law Courts.

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The Law Society Library and Continuing Professional Development are pleased to announce a new CPD Study Group opportunity for our members – Research Case Studies.

Study groups offer a flexible and convenient way for lawyers to obtain CPD Hours. A study group involves a group of lawyers getting together to discuss content that meets the criteria set out in the CPD Policy. Study groups work best when the group is made up of 4-5 lawyers. One member of the group must act as the facilitator in each session to chair the meeting. The facilitator is also responsible for submitting a CPD Activity Application Form detailing the content, participants, meeting date and time in order for all group members to be able to self-report their hours. All study groups are accredited for actual time spent discussing the content.

A Research Case Study presents a scenario where a lawyer must locate appropriate legal authorities using databases available through the Law Society website. A laptop and access to the Members’ Section of the website are required for these sessions. These cases have been updated with Saskatchewan content and resources and we are pleased to offer them to our members at no charge. Cases are listed by practice area on the CPD website in the Resources section. Each case comes with a case-specific Facilitator’s Guide which will help guide the discussion and provides some resources to do so.

Please note that Research Case Studies do not qualify as Ethics Hours.

CPD hours are NOT available for:

Time spent reading materials whether before or after the study group session;

Discussing file specific content.

Don’t forget! Your group must submit a CPD application form detailing meeting name, date and time, participant names and content in order to be able to claim CPD Hours. You are able to claim the actual amount of time spent discussing the cases up to a maximum of (3.0) CPD Hours per group meeting.

Lawyer X represents all three parties in a real estate transaction; the vendors, the purchasers, and the lending institution, ABC Lender.

On the file, there were, among other documents, a Verification of Individual’s Identity in Canada by Commissioner or Guarantor for both vendors. Both verification forms were completed by a Commissioner for Oaths, who is also an employee of ABC Lender.

There is also a letter from Lawyer X to ABC Lender that states:

As discussed with my assistant, please have witness sign the Affidavit of Execution before a Commissioner for Oaths and return both copies of the mortgage to our office. We will also require a copy of the vendors’ identification referenced on the Client ID forms.

Lawyer X’s practice is to have an employee of ABC Lender complete the Verification Forms when no one from the firm meets with clients. Lawyer X indicates that this is common practice in his firm when representing out-of-town clients. The execution of the sale and purchase documents were also administered before the employees of ABC Lender and not Lawyer X. Concern was raised with Lawyer X that he was purporting to represent clients without, in fact, meeting and advising them on the matter.

When the issue of not meeting with clients was raised with Lawyer X, he inquired whether he could meet with clients via phone or skype and provide legal advice in that manner, prior to having the clients meet with ABC Lender employee(s) to execute the documents.

This matter was referred to the Ethics Committee to determine whether Lawyer X’s proposed solution would be an acceptable practice.

Decision:

The Ethics Committee determined that it is important to strike a balance between verifying client and others’ identities and utilizing modern technology.

The Committee did not have an issue with providing legal advice via technology (phone or skype), if it is appropriate and sufficient for the client’s needs. The rules surrounding client confidentiality and loyalty still apply, so the lawyer must ensure that legal advice given via video conferencing meets all obligations required by lawyers. For example, it would be inappropriate to provide legal advice to the purchaser/mortgagor client with the bank representative or the mortgage broker in the room.

Whether it is appropriate to use technology to sign a document, depends on the document and jurat: what it says, what a lawyer is attesting to, etc. If a lawyer purports to have personally witnessed someone sign a document, then the lawyer needs to have actually done so. This comes directly from the BC Case, First Canadian Title v. Law Society of British Columbia: “attended in person” means that the person signing was personally present when the signatory signed. Members should be aware of the BC Case and follow it.

Given the similarities between the BC case and the member’s proposal, the Ethics Committee suggests it would be inappropriate for Lawyer X to advise clients via video conferencing and then swear an affidavit of execution as if Lawyer X personally witnessed the client’s execution based on personal attendance. However, the practice of meeting with clients via video conference, providing legal advice during the video conference and then having the client meet with a third-party representative for document execution, is permitted. This third party may be a bank representative or other agent for the lawyer.